Overloaded at One First Street

By
Ronald K. L. Collins, Ronald K. L. Collins, formerly a judicial fellow at the US Supreme Court, is editor of the book ''Constitutional Government in America.'' /
October 6, 1982

Court-watchers listened anxiously as Marshal Alfred Wong intoned the traditional ''Oyez, Oyez, Oyez'' to usher in the new Supreme Court term. Formidable issues like state limitations on abortion await resolution. The most momentous decision, however, may have nothing to do with individual cases.

Probably the toughest question is what to do about the court's burgeoning docket. Once exclusively the cause of conservatives and judicial administrators, the court's ever-swelling caseload is now a lively topic among all of the justices.

Recently Justice John Paul Stevens characterized the situation as ''unmanageable.'' Equally troubled, his colleagues Lewis Powell and Byron White are calling for ''fundamental changes.'' And Justice William Brennan - a stalwart Warren Court liberal - last month declared that the present work-load is taxing the justices' ''endurance to its limits.''

The idea of nine justices and their small squadron of law clerks tackling nearly 4,500 new case filings a term is astonishing - this while producing 150 court opinions during the same period. By last July the significance of these figures jarred those who rely on the court for guidance and goodness.

At the close of the 1981 term nearly 70 percent of the 1982 term's oral argument calendar had already been reserved by cases held over. The 1982-83 court docket is now packed through February and will be entirely full soon. What this means, said Justice White, is that ''we shall not be current in our work; cases will be ready for argument and we shall not be ready for them.''

One noteworthy consequence is delay. In 1965 Ernesto Miranda had to wait only three months for oral argument after the justices agreed to review his celebrated case. Today, if he were alive he might have to bide his time for a year or so for the same opportunity. After that he could expect another six-month delay for a ruling.

The consequences of this flood of cases extend importantly beyond managerial worries. For example, the court is disposing of more and more of its backlog of significant cases in an abbreviated fashion. Thus, the justices are deciding some cases without the benefit of full briefing or oral arguments. Critical of this increasingly prevalent practice, Justice Thur-good Marshall complained several weeks ago: ''The Court has employed (this) device to aid prosecutors and (state) officials.''

What we are witnessing is the emergence of a Supreme Court so overbooked that it is no longer a realistic haven for many of those seeking justice. Either there is ''no vacancy'' for the pleas of the victims of wrongdoing or their petitions meet with long delayed and cursory treatment, typically unfavorable. So what is being done?

Besides a few commissions' recommendations and the debut of automation in the court, surprisingly little is actually being done to end the caseload crisis - little, that is, beyond the court's sleights-of-hand to ''resolve'' controversies by summary dispositions. Odd-ly enough, there is reason to believe that the justices are actually creating work for them-selves.

The present court has responded, at least in part, to the caseload pressures by continuing to employ various door-closing techniques to limit petitions from state court judgments denying civil liberties claims. Ironically, at the same time when the court is closing federal courthouse doors to Bill of Rights claimants, it is flinging its own doors wide open for prosecutors and other state officials complaining that state courts have adopted too liberal interpretations of constitutional guarantees. In the 1980-81 term, for example, the justices reversed almost 40 percent of all state court decisions challenged by state officials as contrasted with a meager 5 percent of challenges brought by civil liberties claimants.

The predictable consequence of extending such hospitable treatment to state officials has been to increase the volume of state initiated petitions for review. Over the past decade and a half this increase has been signi-ficant.

Is this a wise allocation of the court's scarce resources? ''Definitely not, '' responds UCLA political scientist Robert C. Welsh. In a recent study Welsh argues that ''the increasing frequency with which expansive state civil liberties judgments have been subjected to review and reversal belies the Court's oft-repeated allegiance to a principled conception of federalism and decentralized decision-making.'' Simply put, the court ought to show either total or far greater deference to state court judgments upholding constitutional rights.

Extra work is also being generated by the present manner in which the justices go about declining to review cases. Traditionally, when the court did not want to hear a case it routinely stamped ''certiorari denied'' on the petition and that was the end of the matter. Today, this convention is being greeted too frequently by pointed and protracted dissenting opinions. Nearly 50 of these special opinions - read by only the court's most avid followers - were issued last term. Every justice contributed.

Some maintain that Justices Brennan and Marshall feel particularly obligated to pen these special dissenting opinions owing to the present court's willingness - contrary to established precedent - to attach some legal significance to otherwise pro forma denials of review. Whatever the reasons, self-imposed limits ought to be placed on the practice along with restrictions on that which gives rise to it if the court is to utilize its time most conscientiously and effectively.

Before embracing any major structural proposals (like a national court of appeals) to deal with the caseload problem, the justices might first examine the ways in which they create added work for themselves. Moreover, case management ought not to become a pretense for adversely disposing of civil liberties claims. Finally, immediate steps should be taken to act on some of the more modest and worthwhile proposals being suggested by Justice Brennan and others.

Those who do not appreciate the severity and magnitude of these problems may one day be surprised to discover that equal justice is no longer obtainable from the courthouse located at One First Street.